The deterrent effect of fines in EC competition law: Thoughts and questions

This article deals with the deterrent effect of fines imposed by the European Commission on undertakings for infringements of EC competition rules. It focuses on two main aspects of the implementation of the "deterrence factor". Firstly, the need to ensure a deterrent effect is a general requirement which serves as a point of reference for the Commission throughout the implementation of competition policy. Secondly, this factor must be taken into account in calculating the fine. The article describes how the deterrence factor has become increasingly important in the method of setting fines. It also gives a systematic overview of the case-law of the Court of Justice and Court of First Instance on this subject. It examines the relationship between deterrence and several criminal law concepts, such as recidivism. It is argued that the need to ensure a deterrent effect lies behind the trend to alter the scope of such concepts in EC competition law, and that the deterrence factor has such a wide scope that it may be viewed in some respects as a "joker card". Finally, this article examines whether and to what extent the implementation of the deterrence factor is limited by the principles of proportionality and equal treatment. There is a tension between the principle of proportionality and the deterrent effect of fines, and it appears that it is all the more difficult to reconcile these concepts as there is no clear definition of deterrence in EC competition law.

*This article is an automatic translation of the original article, provided here for your convenience. Read the original article. A sanctions policy can have different purposes: repressive, curative, preventive, dissuasive. These purposes complement each other and are rather "circular" [1]in nature, to the point that to distinguish between them may seem artificial [2]. In particular, it is not easy to distinguish between the notions of deterrence and prevention. From a conceptual point of view, a preventive mechanism may be seen as aiming at influencing a practice before an offence is committed, whereas a deterrent mechanism is rather based on sanctions imposed after the offence has been committed. Deterrence can therefore be seen as one of the possible forms of prevention. Since

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Valérie Giacobbo Peyronnel, Philippe Singer, The deterrent effect of fines in EC competition law: Thoughts and questions, December 2009, Concurrences N° 4-2009, Art. N° 28992, pp. 74-89

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